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Wednesday, May 30, 2012

Successful Judicial Review challenge against RAT on basis of Failure to Consider Tutsi/Rwandan Affiliation, the Risk as a Failed Asylum Seeker and Unsustainable Conclusions made about the South African Immigration System

This case concerned
an application for judicial review in respect of a decision by the Refugee
Appeals Tribunal, affirming a recommendation by ORAC, not to grant the
applicant refugee status.

The
applicant claims to be a national of the Democratic Republic of Congo. He
applied for asylum in February 2006 based on his fear of persecution arising
from his race, political opinion and membership of a social group. He alleged that
he is of mixed ethnicity and in the DRC he is viewed as Tutsi or as having
Rwandan connections. The applicant claimed he was jailed and tortured by the
DRC authorities in 2004 for purportedly supporting the Rwandan Government. The
applicant escaped to Rwanda but was arrested for having no documents and was
detained until January 2006. He then travelled to Ireland where the ORAC
refused him refugee status in December 2006 and the RAT rejected his appeal as
they did not believe his narrative.

Hogan J
granted leave on a number of grounds that centred around three issues:

(1) Risk of persecution based on ethnic
origin or perceived connections to Rwanda.

It was
clear to the tribunal member that the applicants alleged ethnicity was a
distinct and separate point warranting individual consideration. The tribunal
member failed to weigh the merits of the claim and the applicant’s lack of
credibility did not justify this failure. An ambiguity does not suffice as evidence of
acceptance of ethnicity or Rwandan affiliation. However, the court went onto conclude that in
any case this matter ought to have been considered by the RAT and their failure
to do so meant the decision could not stand.

(2) The risk arising to the applicant by
virtue of his position as a failed asylum seeker.

The High Court
held that the RAT failed to consider this issue. It was expressed in previous
case law that failed asylum seekers are not members of a social group and so
particularly cogent evidence is required to quash an RAT decision on this issue.
The court considered a number of documents in examining the credibility of the
applicant’s evidence. Although some documents appeared one-sided and unsubstantiated,
a UNHCR article did state that failed asylum seekers are at risk upon their
return to DRC by virtue of their ethnicity. The failure of the RAT to
adjudicate on the ethnicity/Rwandan affiliation of the applicant in declining
to examine the consequences of being returned to the DRC as a failed asylum
seeker was of such a nature to warrant setting aside the decision in this case.

(3) Benefit the applicant is
entitled to derive from the South
African immigration system by virtue of his marriage to a citizen of that
country

The High Court
agreed wit the tribunal that it is questionable that the applicant never
attempted to seek asylum in South Africa, given his marital connections to that
country. The court held that the tribunal member went far beyond the question
of the applicant’s credibility when he made a number of assumptions about South
African immigration law, without supporting these conclusions by reference to
the law or policy of South Africa. The applicant may be entitled to such benefit
but there is nothing in this decision to support this proposition nor was it
put to the applicant. The court therefore cannot presume to rely on this
decision and so the conclusion was unreasonably made.

On the
basis of these three grounds the High Court granted the applicant an order of
certiorari quashing the decision of the RAT, remitted the matter for rehearing
and to hear submissions in relation to an injunction restraining the respondent
from denying the applicant refugee status and deporting him.